I am unable to agree with the conclusion reached by my associates that Ricketts was not an independent contractor, but was an employee of defendant Times-Picayune Publishing Company.
In the first place, I find no reason to attach any sinister significance to the fact that the contract between Ricketts and the publishing company was not offered in evidence. There was not the slightest controversy or dispute concerning the terms of that contract. The only controversy arose over the legal effect to be given to those terms. Since there was no dispute over the terms and since the circulation manager of the publishing company testified concerning them, there was no necessity to offer in evidence the contract itself.
I quite agree that whether a contracting party is an employee, or an independent contractor, depends primarily upon whether there exists a right of control in the performance of the work. But that does not mean that the mere fact that the one advises the other as to the best method of performing the work makes the other the employee and deprives him of the legal right to perform his contract work as he sees fit.
I have expressed my views fully in Abate et al. v. Hirdes, et al., 9 La.App. 688, 121 So. 775, which I think cannot be distinguished from the case at bar. My associates would distinguish that case in several particulars. First, they believe that there is a difference in legal effect between the payment in this case of $5 a week to reimburse Ricketts the cost of operating his automobile and the payment in the Abate case of $20 per month without any stipulation that it was to be considered as reimbursement for the cost of operating the motor truck. I cannot see the slightest difference in legal effect.
It is also said that the cases can be distinguished because, in Abate v. Hirdes, supra, Hirdes used his automobile for other purposes of his own. Here the automobile is shown to be the personal property of Ricketts; the publishing company did not buy it, made him no loan on it, and had no contact or connection with it, and it therefore requires no evidence to show that Ricketts may use it for any other purpose of his own whenever he wishes to do so.
It is shown here that the company could terminate the contract at any time it might see fit to do so, if it was not satisfied with the work of Ricketts, and that fact, it is true, was not shown in the Abate case, and I concede that the right to terminate a contract at will is sometimes significant in determining whether the contract is one of employment. But it is not the determining factor, and the evidence here is to the effect that there was no right to control the movements of Ricketts and that, in fact, no control was exercised. The evidence shows, without one *Page 359 word of contradiction; that Ricketts bought his papers from the publishing company at a fixed price and that his earning was the difference between that price and the price at which he sold them to the subscribers.
My associates find a distinction in the fact that here the record shows conclusively that the route belonged to the publishing company, whereas the opinion in the Abate case may have omitted making that statement. But the opinion shows clearly that, in fact, the route did belong to the publishing company which was involved, because it states that it assigned that route to Hirdes and made him a contribution because it knew that, in that particular territory, the business would not be sufficient to make him a fair return.
The evidence shows also, without any contradiction, that, though the publishing company collected such money as might be paid to it by the subscribers, it turned over to Ricketts the difference between what he owed them for the papers and what the subscribers paid, and it shows, also, that, if Ricketts continued — to deliver papers to the subscribers whose subscriptions had terminated, he must pay the publishing company for those additional papers. In fact, the record contains no evidence whatever to contradict the statements of the general circulation manager and of the city circulation manager to the effect that it neither had nor exercised any control whatever over the movements of Ricketts except that it did furnish instruction, information and advice as to the best method of conducting his business.
I see nothing in this case which makes it similar to Davidson v. American Drug Stores, La.App., 175 So. 157. There we held squarely that the so-called independent contract was a sham and a subterfuge and was entered into solely for the purpose of preventing the defendant from being liable in tort. Surely there is nothing in this record which justifies the conclusion that that purpose existed here.
*Page 557For these reasons, I respectfully dissent